American Federation of Government Employees, National Council of EEOC Locals, AFL-CIO (Union) and Equal Employment Opportunity Commission (Agency) 



[ v04 p454 ]
04:0454(61)NG
The decision of the Authority follows:


 4 FLRA No. 61
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 NATIONAL COUNCIL OF EEOC LOCALS
 Union
 
 and
 
 EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION
 Agency
 
                                            Case No. O-NG-59
 
            DECISION AND ORDER DISMISSING NEGOTIABILITY APPEAL
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C.  7101 ET
 SEQ.).
 
    ACCORDING TO THE RECORD BEFORE THE AUTHORITY, THE UNION HEREIN IS THE
 EXCLUSIVE REPRESENTATIVE FOR A NATIONWIDE BARGAINING UNIT IN THE AGENCY.
  THIS MATTER AROSE WHEN THE AGENCY SUBMITTED A COPY OF PROPOSED
 PERFORMANCE REQUIREMENTS FOR CERTAIN POSITIONS TO THE UNION FOR
 COMMENTS. THE UNION RESPONDED, REQUESTING NEGOTIATIONS.  SUBSEQUENTLY,
 THE AGENCY ADVISED THE UNION THAT IT WAS IMPLEMENTING THE PERFORMANCE
 REQUIREMENTS, ALLEGING IN ESSENCE THAT SUCH REQUIREMENTS WERE NOT
 SUBJECT TO NEGOTIATIONS.
 
    THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY,
 STATING THE "ISSUE INVOLVES THE QUESTION OF NEGOTIATING AN AGENCY POLICY
 ON PERFORMANCE REQUIREMENTS," AND STATING THAT IT HAD REQUESTED IMPACT
 BARGAINING.  THEREAFTER, THE AGENCY, IN ITS STATEMENT OF POSITION FILED
 WITH THE AUTHORITY, DISAGREED WITH THE UNION'S ARTICULATION OF THE
 ISSUE.  THE AGENCY STATED THAT THE MATERIAL SENT TO THE UNION DID NOT
 ESTABLISH OR CHANGE AN AGENCY POLICY AND THEREFORE THERE WAS NO DUTY TO
 BARGAIN.  FURTHERMORE, THE AGENCY STATED THAT IT HAD NOT MADE A
 DETERMINATION THAT THE IMPACT OF PROPOSED PERFORMANCE REQUIREMENTS IS
 NONNEGOTIABLE:  RATHER, THE AGENCY ACKNOWLEDGED THAT SUCH IMPACT AND
 IMPLEMENTATION PROCEDURES ARE WITHIN THE DUTY TO BARGAIN.
 
    FOR THE FOLLOWING REASONS, APART FROM ANY OTHER CONSIDERATIONS, THE
 DISPUTE HEREIN DOES NOT GIVE RISE TO A NEGOTIABILITY ISSUE WHICH THE
 AUTHORITY MAY REVIEW AT THIS TIME PURSUANT TO SECTION 7117 OF THE
 STATUTE.  FIRST OF ALL, INSOFAR AS THE PRESENT CASE DOES NOT PRESENT A
 SPECIFIC PROPOSAL, IT BEARS NO MATERIAL DIFFERENCE FROM ASSOCIATION OF
 CIVILIAN TECHNICIANS, ALABAMA ACT AND STATE OF ALABAMA NATIONAL GUARD, 2
 FLRA NO. 39(1979), IN WHICH THE AUTHORITY DISMISSED THE UNION'S APPEAL.
 IN THAT CASE THE AUTHORITY DETERMINED THAT A PETITION WHICH DID NOT
 PRESENT A PROPOSAL SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND
 CONTENT AS TO PERMIT THE AUTHORITY TO RENDER A NEGOTIABILITY DECISION
 DID NOT MEET THE CONDITIONS FOR REVIEW.  THEREFORE, BASED ON THE REASONS
 SET FORTH IN GREATER DETAIL IN ASSOCIATION OF CIVILIAN TECHNICIANS,
 SUPRA, THE INSTANT APPEAL LIKEWISE DOES NOT MEET THE CONDITIONS FOR
 REVIEW PRESCRIBED IN SECTION 7117 OF THE STATUTE AND SECTION 2424.1 OF
 THE AUTHORITY'S RULES OF PROCEDURE AND MUST BE DISMISSED.
 
    ADDITIONALLY, TO THE EXTENT THE UNION IS PROPOSING THE PARTIES ENGAGE
 IN "IMPACT BARGAINING ON THIS DIRECTIVE (ON PERFORMANCE REQUIREMENTS),"
 IT IS NOTED FROM THE RECORD THAT THE AGENCY AGREES THAT "MATTERS WHICH
 ARE COMMONLY REFERRED TO AS IMPACT AND IMPLEMENTATION PROCEDURES . . .
 ARE SUBJECT TO NEGOTIATION," AND, THUS, THERE IS NO DISPUTE PRESENTLY
 BEFORE THE AUTHORITY.
 
    FINALLY, TO THE EXTENT THAT THE AGENCY CLAIMS IT HAS NO DUTY TO
 BARGAIN UNDER THE CIRCUMSTANCES, BECAUSE ITS DRAFT DIRECTIVE ON
 PERFORMANCE REQUIREMENTS DID NOT ESTABLISH OR CHANGE AN AGENCY POLICY
 AND THE UNION CLAIMS TO THE CONTRARY, THE PROPER FORUM IN WHICH TO RAISE
 THESE ISSUES IS NOT A NEGOTIABILITY APPEAL BUT WOULD BE AN UNFAIR LABOR
 PRACTICE PROCEEDING PURSUANT TO SECTION 7118 OF THE STATUTE.  IN THIS
 REGARD, RESOLUTION OF THE INSTANT DISPUTE IS DEPENDENT UPON THE
 RESOLUTION OF FACTUAL ISSUES RELATED TO THE PARTIES' CONDUCT.  SUCH
 FACTUAL DETERMINATIONS CAN BEST BE ACCOMPLISHED THROUGH USE OF THE
 INVESTIGATORY AND FORMAL HEARING PROCEDURES SET FORTH IN PART 2423 OF
 THE AUTHORITY'S RULES AND REGULATIONS WHICH GOVERN UNFAIR LABOR PRACTICE
 PROCEEDINGS (5 CFR 2423).  FURTHERMORE, TO THE EXTENT THAT THE INSTANT
 CASE ARISES OUT OF A DISPUTE OVER THE MEANING OF PROVISIONS CONTAINED IN
 THE PARTIES' AGREEMENT AS ADVERTED TO BY THE AGENCY, THE PROPER FORUM IN
 WHICH TO RESOLVE SUCH QUESTIONS IS NOT THE NEGOTIABILITY APPEAL BUT,
 INSTEAD, WOULD BE PURSUANT TO WHATEVER PROCEDURES THE PARTIES THEMSELVES
 HAVE ADOPTED FOR SUCH PURPOSE THROUGH SUCH AGREEMENT. AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1931 AND DEPARTMENT
 OF THE NAVY, NAVAL WEAPONS STATION, CONCORD, CALIFORNIA, 2 FLRA NO.
 19(1979).
 
    FOR THE FOREGOING REASONS, THE UNION'S APPEAL DOES NOT PRESENT ISSUES
 THAT THE AUTHORITY CAN APPROPRIATELY RESOLVE AT THIS TIME UNDER SECTION
 7117 OF THE STATUTE AND PART 2424 OF ITS RULES AND REGULATIONS, 5 CFR
 2424.1 ET SEQ.  ACCORDINGLY, IS IS ORDERED THAT THE APPEAL BE DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
 AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
 PARTIES LISTED:
 
    MR. RONALD D. KING, D